People ex rel. Lester v. Mitchell

Hardin, P. J.

In People v. Ransom, 2 N. Y. 490 , it was said that “an alternative mandamus is in the nature of a declaration.” In Fiero on Special Proceedings, at page 72, it is said: “The writ of alternative mandamus is, when granted in the first instance, in the nature of an order to show cause, (People v. Rensselaer Common Pleas, 3 How. Pr. 164 ; Bank v. Commissioners, 10 Wend. 25 ;) but also stands as a pleading, (People v. Ovenshire, 41 How. Pr. 164 .) ” In People v. Board, 107 N. Y. 235 , 13 N. E. Rep. 920, the court, in considering the nature of a writ of mandamus, says that, when it is “asked against public officers to compel the performance of an alleged public duty, the granting or refusing of the writ is somewhat a matter of discretion. ” The special term having exercised its discretion in the case before us in allowing an alternative writ of mandamus, we see no occasion to disturb the result of that discretion. In People v. Board , 3 N. Y. Supp, 752, we said: “Whether mandamus was a proper remedy, and whether the relator had another legal remedy, were, we think, questions that should have been raised by a return to the writ, or by a demurrer, as provided for by section 2076 of the Code of Civil Procedure, and not by motion.” Applying the doctrine of that case, we may appropriately say that such questions are not fairly before us on this appeal. It is provided by section 2087 of the Code of Civil Procedure that “an appeal from a final order made upon an alternative mandamus must be taken as an appeal from a judgment; and each provision of law relating to an appeal from a judgment, either to the general term or to the court of appeals, is applicable thereto. ” It may be observed that, if there shall be a final order-made in these proceedings upon “ an alternative mandamus, ” the party against whom the order is made may have his remedy in virtue of that section.

2. Regarding, as we think we should, the appeal before us as bringing up that part of the order which refused a peremptory mandamus, it may be observed there is no occasion to reverse that part of the order. It seems the question which the relator seeks to have determined in these proceedings is like the one presented to this court in People v. Village of Little Falls, 8 N. Y. Supp. 512, 960 . That decision seems to be adverse to the relator. However, we do not consider it opportune to pass upon the merits of the application made by the relator at this time. However, we thi nk the order made at special term should remain. Order affirmed, with $10 costs and disbursements. All concur.